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Victims of Domestic or Dating Violence, Sexual Assault, or Stalking Protected Against Bias

This article was written for publication in the December, 2012 New Hampshire Employment Law Letter, a newsletter written for New Hampshire employers by the labor and employment attorneys at Sulloway & Hollis and published by BLR® – Business & Legal Resources, and is posted online in the HR Hero Line.

As an employer, you know that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, sex, religion, or national origin. You also know that the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability. What you may not know is that those federal laws can apply to employment situations involving employees and applicants who experience domestic or dating violence, sexual assault, or stalking. The Equal Employment Opportunity Commission (EEOC) recently posted guidance in a question-and- answer format explaining the commission’s positions on these issues.

TITLE VII

The EEOC takes the position that the following actions are prohibited by Title VII because they are based on sex-based stereotypes:

• Terminating an employee after learning she has been subjected to domestic violence;
• Choosing not to hire a male applicant because he obtained a restraining order against his domestic partner; and
• Granting leave to a male employee so he can testify in an assault trial but denying leave to a female employee to prevent her from testifying in a domestic violence case.

The EEOC considers the following actions to be prohibited because Title VII also prohibits sexual or sex-based harassment and retaliation:

• Failure to protect a female employee who reports sexual harassment or stalking by a male coworker;
• Terminating a female employee who refuses the sexual advances of her male supervisor; and
• Reassigning a female employee to less-favorable projects, shutting her out of meetings, or telling coworkers to stop speaking to her after she reports being raped by her manager.

ADA

The ADA prohibits different treatment or harassment of an employee based on a physical or mental impairment, including impairments resulting from domestic or dating violence, sexual assault, or stalking. The following are examples of prohibited actions:

• Choosing not to hire an employee because you learn that she was the complaining witness in a rape case and was treated for depression; and
• Failing to stop fellow employees from harassing an employee with facial scarring resulting from domestic violence.

The ADA requires you to provide reasonable accommodations requested by an employee with an actual disability. The following are examples of failing to provide a requested reasonable accommodation:

• Refusing to provide a schedule change or unpaid leave to an employee who is seeking treatment for depression and/or anxiety resulting from sexual assault; and
• Denying a transfer request from an employee suffering from major depression resulting from stalking by an ex-boyfriend who works in the same building as the employee.

The ADA also prohibits the disclosure of confidential medical information and retaliation for exercising rights under the Act. The EEOC considers the following actions prohibited:

• Disclosing to coworkers that an employee is being treated for post- traumatic stress disorder resulting from incest; and
• Threatening to punish an employee if he reports a violation of the ADA to HR.

CONCLUSION

The examples provided by the EEOC are extreme. While you would never dream of doing any of those things, you must ensure that your employees understand that such behavior is unlawful and will not be tolerated by your company. Do not assume that your supervisors and managers already know not to punish or take other prohibited actions against an employee because she has been assaulted. You must continuously train your employees and ensure they comply with the law. If you do, you will not only protect your employees, but you also will help prevent expensive discrimination lawsuits. You can find the EEOC’s guidance at www.eeoc.gov/eeoc/publications/qa_domestic_violence.cfm.

If you have any questions concerning the impact on your company, please contact Edward R. Sisson, Esq., member of the firm’s Labor and Employment Practice Area.